Nalco Australia Pty Ltd & The Australian Workers’ Union - Greater New South Wales Branch

[2011] FWA 6062

[2011] FWA 6062

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

Nalco Australia Pty Ltd
&
The Australian Workers’ Union - Greater New South Wales Branch
(AG2011/11676)

DEPUTY PRESIDENT SAMS SYDNEY, 6 SEPTEMBER 2011

Application for approval of the Nalco Australia Pty Ltd & AWU Collective Agreement, Botany 2011.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (‘the Act’) filed by Nalco Australia Pty Ltd (‘the applicant’) seeking the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as Nalco Australia Pty Ltd & AWU Collective Agreement, Botany 2011 (‘the Agreement’). The Agreement was negotiated with the Australian Workers’ Union - Greater New South Wales Branch (‘the Union’). The application was not accompanied by the required Declaration in support of the application (Form 17). However, when the applicant received the notification of listing for this application, the applicant indicated a F17 would be provided to the Tribunal at the hearing.

[2] The application was listed on 1 September 2011. Mr P McNamara appeared for the applicant and Mr S Crawford appeared for the Union. After the parties sought, and were granted, a brief adjournment, I was advised that the Agreement could not be approved by FWA because a notice of employee representational rights was not given in accordance with the relevant provisions of the Act.

[3] Section 173 and 174 of the Act deal with the procedural and content requirements of the notice of representational rights, required to be given by the employer to the employees who will be covered by the Agreement. Section 181(1)(2) of the Act is expressed as follows:

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

[4] Given there is no discretion available to FWA to waive the requirements of ss 173, 174 and 181(2) of the Act, the parties correctly submitted that the Agreement cannot be approved by FWA. It was proposed, by consent, that the application be dismissed and the parties resubmit an application for approval when all the statutory requirements are met. I consider this is the only sensible and practical course to adopt, noting that the employees will not be disadvantaged by a delay in the approval of the Agreement, as all of its terms, most notably, increased wage rates, are already being applied at the site.

[5] Accordingly, pursuant to s 587(1)(a) of the Act, I order that application AG2011/11676 be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Crawford for the Australian Workers’ Union - Greater New South Wales Branch

Mr P McNamara, Solicitor, for the employer

Hearing details:

2011
SYDNEY
1 September

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514272>